Is non determination of a section 211 a legal way of dismissing it?

[Paul73]

Hi guys,

After 20 years of submitting sections 211s this is a bit of a new one on me. To cut a long story short the notification was registered as valid. Nothing was heard for six weeks, then the LPA has belatedly issued me with a letter that that has a file name "non determination letter". The letter is dated within the six week period and says

"This letter is to advise you that an assessment of your proposals has determined
that a felling licence from the Forestry Commission is necessary. A felling licence
application should be determined prior to the submission of a S211 notice"

This is new to me. I thought that they were separate things. The LPA decides whether or not to place a TPO, the owner of the trees can decide whether to fell 5 cubic metres or less a quarter or apply for a felling license. 

Its like you need a permit to disturb badgers, you need to wait till birds stop nesting and you need the owner's permission to fell a tree but these things have nothing to do with the validity of a section 211 or the council's inability to do anything if they have not placed a TPO by the end of 6 weeks.

 

Does anybody know if a felling license is a prerequiste for a section 211 or just a prerequisite for felling more than 5 cubic metres a quarter? 

Can a notification registered as valid be legally "non determined?" without "no objection" by default being the outcome?

 

I am wondering if the LPA just hates the idea of letting me fell the trees, knows a TPO on a huge double screen of hybrid poplars and leylands at maturity would be ridiculous and so is hiding behind the FC hoping that, in order to get a felling license, a field of scrub ideal for infill development (which at present is not actually mooted but which would no doubt come to mind to some owner at some point) will end up getting a woodland classification?

 

I would be very grateful of your thoughts guys.

 

Thanks

 

Paul

Edited February 27, 2021 by Paul73

[Dan Maynard]

I hadn't heard of this but looks like it's exempt from needing a 211 if it needs a felling licence (pasted from .gov). Never had to get a felling licence, imagine it's not quick.


What other types of tree work do not require a section 211 notice?

A section 211 notice is not required where the cutting down, topping, lopping or uprooting of a tree is permissible under an exception to the requirement to apply for consent under a Tree Preservation Order. Nor is a section 211 notice required for:

the cutting down, topping, lopping or uprooting of a tree by, or on behalf of, the authority;

the cutting down, topping, lopping or uprooting of a tree by or on behalf of the Forestry Commission on land in which it has an interest; or

cutting down a tree in accordance with a felling licence or a plan of woodland operations agreed by the Forestry Commission.

[daltontrees]

Possibly straightforward enough. 5 cube a quarter is 40 cube in 2 years. A CA notification that hasn't resulted in a TPO has 2 years' duration. So perhaps this is a situation where there is so much timber being removed in the notification that it can't possibly be removed within 2 years without a felling license. So maybe the Council does not want to leave you with the impression that CA notification exempts you.

Thereafter it depends on what country you are in. Don't people put their location in their Arbtalk profile any more?

[Paul73]

Thanks guys. I think 40 cubic metres will go a long way on this job, maybe more than half way even but it won't cover it. At the end of it they will not be able to make a TPO stick on half an unmaintained double hedge if they couldn't make it stick on a whole one, so I would think another section 211 would finish the job. It would be a nice tidy little quarterly exercise to take down a few trees.

 

My experience of the FC from being a woodland owner is that they really, really love forms and they take a very long time to reply at the moment because a lot of them are on furlough. I also notice how land changes its designation on the government magic map when you get them involved and this may have knock on effects. I would sooner keep it simple for eveyone's sake.

 

I just can't seem to get a straight answer from the tree officer though as to whether or not my section 211 "went through".  Can a council unilaterally back out of a section 211 that is registered as valid? I didn't think it was possible.

 

Good point Dan about the felling license trumping the conservation area. So it looks like the council's letter is wrong there to start, the fellig license cannot be a pre-requisite to the section 211 as once you have a felling license you don't need a section 211.

 

I am in England Julian. I had better try to find out how to update my profile. Arb talk is a great resource. I don't come here as often as I probably should.

[Paul in the woods]

 

Any help?

 

From: https://www.gov.uk/government/publications/tree-felling-getting-permission

 

 

 

4.1.4 Conservation areas

 

For applications to fell growing trees in conservation areas, we will notify the LPA of the application and seek its views in respect of ‘the amenity of the district’.

 

Once the felling licence has been issued, you should give the LPA at least six weeks’ notice before carrying out any felling, topping, lopping or uprooting work. However, you cannot give notice more than two years before the works being carried out.

 

You should check with the LPA over this. Usually, the conservation area notice period gives LPAs the chance to protect the tree with a TPO before work starts, should it decide to do so. This could result in a new felling licence being required

 

[Paul73]

So it gets stranger. 

 

What Dan found says no need for section 211 if you have a felling license. What Paul found says the FC notify the LPA and then you have to do it again yourself afterwards! 

 

Dan where did you paste that quote in from please? It looks like maybe there are contradictions in government publications?

[daltontrees]

2 hours ago, Paul73 said:

I just can't seem to get a straight answer from the tree officer though as to whether or not my section 211 "went through".  Can a council unilaterally back out of a section 211 that is registered as valid? I didn't think it was possible.

There's no such thing as validation of a CA notice, but if my reading of the situation is correct then it has highlighted a bit of a condradiction to the normal rule that there are only 3 things a Council can do in response to a CA notice (make a TPO, agree to the works or let 6 weeks elapse), your Council believes it can also indicate that a felling license is required. This is not really a rule though, it is an informal process. Strictly speaking the notice may well have been valid and the Council (in not making a TPO) has authorised the works by default but since they can't be carried out without breaching Forestry Act rules (i.e. felling without license or exemption) you're not in the clear.  So when you apply for a License the FC will consult with the LPA (and here's where it gets murky in England) the LPA could tell the FC that the trees are important for the amenity of the area and the FC would then probably refuse the license. The Council could then make a TPO. Or not.

 

Where would that leave things? It would feel like a TPO even without a TPO. You could notify the removal of just enough trees that you could fell them quarterly for 2 years without the need for a FL. At that point the LPA could make a TPO. Or might not. Who knows?

 

So, either re-notify a smaller amount or go for a FL and let it be decided between the Council and the FC. But notifying a smaller amount could trigger a TPO anyway because the LPA would have grounds to believe tha there was underlying intention to remove more, which would come within its 'expediency' test.

 

The authority of the FC in England is seriously questionable as it is unelected and makes decisions based on unstated criteria. This is why a wondered where you are based, as in Scotland where I am the law is very different and the criteria are stated in primary legislation, making accountability and appeal routes much clearer. Also our citeria include amenity-type considerations.

[daltontrees]

2 hours ago, Paul73 said:

So it gets stranger. 

 

What Dan found says no need for section 211 if you have a felling license. What Paul found says the FC notify the LPA and then you have to do it again yourself afterwards! 

 

Dan where did you paste that quote in from please? It looks like maybe there are contradictions in government publications?

The FC appears to be wrong about this. The 2012 TPO Regs also cover CAs and are clear -

"15.—(1) Section 211(a) (preservation of trees in conservation areas) shall not apply to ...

(b) the cutting down of a tree in accordance with a felling licence granted by the Forestry Commissioners under Part II of the Forestry Act 1967 (Commissioners’ power to control felling of trees);"

[daltontrees]

I just realised it might be legally correct to implement the CA notice but only at 5 cube a quarter and then stop after 2 years, but I wouldn't recommend it without fully considered legal advice.

[Dan Maynard]

Here

Tree Preservation Orders and trees in conservation areas - GOV.UK

WWW.GOV.UK

---

Explains the legislation governing Tree Preservation Orders and tree protection in conservation areas.

Paragraph 132 . If you click "protecting trees in conservation areas" it gets you close.